Should you trademark your business name? The pros and cons

You may be considering trademarking your business name to confirm your customers identify your product or service as unique, and ensure your business is – and remains – distinguishable from other businesses. You may trademark your business name on a national and/or international level, after considering whether your business will operate locally, nationally, or globally.

The pros

In short, the pros of registering your business name as a trademark include:

  • Protection of your name against imposters and copycats;
  • A secure brand on social media – Facebook, Instagram, Pinterest, Twitter and other social media venues have policies in place to protect you against abuse;
  • Trademarks are easy to renew;
  • Trademarks build brand loyalty and may even evoke pride in employees; and
  • Trademarks can safeguard against cybersquatting (domain names that are identical or similar to your trademarked name).

A business name alone does not give you exclusive trading rights or ownership over that name. A trademarked business name can be extremely useful as a marketing tool – it gives your business an identity or brand. You will have ownership and exclusive rights to the commercial use, license, or sale of your business name as a trademark. No one else in Australia will be able to commercially use your business name within the class of goods and services it is registered under. It will carry intellectual property protection and you may use the capital R enclosed in a circle following your business name, alerting others your business name is a registered trademark. This can help build the value of your business, and the trademark may hold value in itself. If another trader tries to pass their own product or service off using your trademark it will be an offence under the Competition and Consumer Act 2010.

It is possible to protect your business name as a trade mark without registering it, if your business has been using it for a sufficient period of time and built up significant reputation. However protecting a trademark without the benefit of registration is likely to be much more difficult and expensive in the long run.

New businesses registering their business name will be alerted to your trademark when they use IP Australia’s TM Check to ensure they do not infringe on an existing registered trademark.

The cons

The negative aspect of registering your business name as a trademark is the hassle of dealing with government agencies, the time it takes to jump through legislative hoops and the cost – which is not large but not insignificant either.

The process of registering, and the cost

You may register your business name as a trademark using the Australian Government IP Australia online services. Online, there are different cost structures depending on whether you use the TM Headstart service or the Standard filing service; application costs range from $130 – $480 per class. Class refers to classes of goods and services – goods and services are divided into 45 classes. To discern which class/es you need to register your trademark under, think about the exact nature of your business and consider the following:

  • Where do you derive your business income?
  • What is the nature of your business?
  • What are you known for by your customers/clients?
  • What products or services does your business provide?

Once your trademark application is approved, there is no further fee to register the trademark.

Once you have submitted your trademark application, it takes three to four months for IP Australia to examine it and ensure the application is correct and meets legislative requirements, under the correct class and so on. Refunds are not given for errors so it is important to get the application perfect first time around. It is advisable and may save you much needed time, energy and money to engage your lawyer to do the application on your behalf. Certainly if you are moving your business to a global platform, a lawyer’s advice on trademarking overseas will be indispensible.

Once your trademark application meets all requirements, it will be registered and you will be notified in writing.

Maintaining your trademark

If you do decide to trademark your business name, you must actively use it in the course of trade. If you do not use it, the trademark can be removed on the grounds of non-use (trademarks are not allowed to be registered to simply stop other traders from using them.)

Once registered, your trademark remains for ten years from filing date. You can renew your trademark from 12 months before renewal is due, or up to six months after. Current on-time online renewal fees are $400 per class, however there will be extra fees if you renew after the due date.

Weighing up the pros and cons

Overall, trademarking your business name is usually worth the time, effort and cost. It ensures the business you have built remains solid, holds its reputation in the long term, and you know you won’t need to change your name or branding down the track.

This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation. 

Published Feb 15, 2017

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